Judge Mark V Holmes is sympathetic, but can’t help Charles Romano & Rhonda Romano, Docket No. 14072-18L, filed 10/15/20, despite Charles’ (that’s Dr. Charles’) proffer of 1000 (count ’em, 1000) or more pages of “medical documentation . . . concerning my medical status, that of wife and 2 adult children as well. Please note that this will be as many as 1000 pages of documents, if not more, concerning many many hospitalizations and surgical procedures endured by this family over the last 10 years.” Order, at p. 2.

Dr. Charles petitions a NOD, but one year got tossed since no NFTL or NITL was issued, and Dr. Charles paid the rest two years ago. But the case isn’t over, because Charles raised abatement of interest at his CDP. And Wright says that, in 2 Cir at least, raising interest abatement at a CDP invokes Tax Court jurisdiction per Section 6404(h).

Now the administrative record has none of Dr. Charles’ medical evidence, but while standard of review is abuse of discretion, scope of review is de novo.  So Dr. Charles’ evidence could come in.

“We will accept, on a motion for summary judgment, the truthfulness of the Romanos’ characterization of the length and severity of their health and financial difficulties. The problem is that they are legally irrelevant to the question of whether the Commissioner should have abated the interest on the Romanos’ tax bill and then refunded it to them.” Order, at p. 2.

“Since 1996, the Code has told the Commissioner that he should abate interest caused by any ‘unreasonable error or delay by an officer or employee of the Internal Revenue Service * * * in performing a ministerial or managerial act.’ See Taxpayer Bill of Rights 2, Pub. L. 104-168, § 301, 110 Stat. 1452, 1457 (1996) (codified as amended at I.R.C. § 6404(e)(1)) (emphases added). A ‘ministerial act’ is ‘a procedural or mechanical act that does not involve the exercise of judgment or discretion.’ 26 C.F.R. § 301.6404-2(b)(2) (2019). This definition captures only such bureaucratic snafus as delays in transferring a case between offices or in issuing an already agreed-upon notice of deficiency. See id. § 301.6404-2(c), examples (1) and (2). ‘Managerial’ acts include such mistakes as ‘the temporary or permanent loss of records’ and, more generally, mistakes in the ‘exercise of judgment or discretion relating to management of personnel.” See id. § 301.6404-2(b)(1).” Order, at p. 3. (Emphasis by the Court).

Dr. Charles’ problems, real as they are, and any other taxpayers’ problems, real as they may be, are not bases in law for abatement of interest.

The administrative record drives the point home.

“And the evidence before us on this motion even gives us an example of this distinction. Remember that Dr. Romano went to the IRS… to pay his tax bill. He asked the IRS employee with whom he spoke to give him the correct payoff amounts for each year.

“The IRS employee gave him the numbers; he paid those amounts. But then he kept getting bills saying that he owed interest on [one] year. The Appeals officer who looked into this discovered that the IRS employee that Dr. Romano had asked to calculate his bill had made a mistake. The Appeals officer reasoned that if Dr. Romano had been given the correct, slightly higher, number then he would have paid it right then and there.

“He therefore abated this interest, because the only reason the IRS charged it was because of the IRS’s own mistake. He did not abate any other interest because the Romanos ended up owing it on account of their personal situation, not anything that the IRS itself did.

“This is not only not an abuse of discretion, but a correct statement of the law in this area on facts that no one disputes.” Order, at p. 3.